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[Federal Register Volume 89, Number 242 (Tuesday, December 17, 2024)]
[Rules and Regulations]
[Pages 101882-101884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29681]

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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 543

[BOP-1175-F]
RIN 1120-AB75

Inmate Legal Activities: Visits by Attorneys

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (``Bureau'' or 
``BOP'') finalizes revisions to regulations related to attorney-client 
visits at BOP institutions.

DATES: Effective December 17, 2024, BOP adopts the interim final rule 
published at 89 FR 8330 on Feb. 7, 2024, as final without change.

FOR FURTHER INFORMATION CONTACT: Daniel J. Crooks III, Assistant 
General Counsel/Rules Administrator, Federal Bureau of Prisons, at 
(202) 353-4885.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 7, 2024, BOP published an interim final rule that 
amended regulations related to attorney visits. 89 FR 8330 (Feb. 7, 
2024). The comment period closed on April 8, 2024, and we received six 
comments. Of those six comments, only two were related to the rule; 
each of those comments is discussed more fully below. Of the four 
unrelated comments, one noted generally that BOP should review its 
regulations annually for improvement; one was mistakenly posted to this 
docket instead of to the docket for another BOP rulemaking; another 
laments the general treatment of January

[[Page 101883]]

6 defendants; and the last advocates for revised regulations regarding 
clergy visits to BOP facilities. After consideration of the two 
relevant public comments, BOP is adopting the interim final rule on 
this subject without change.

II. Discussion

    We received two relevant, substantive comments after publication of 
the interim final rule. Each comment is addressed below.
    Comment 1: The commenter states that the revised rule does not go 
far enough to address other means that facilitate attorney-client 
communications, emphasizing that the availability of private telephone 
calls is essential to facilitate attorney-client communications. The 
commenter gave several examples where inmates and their attorneys 
encountered difficulties obtaining approval from officials at BOP 
institutions for unmonitored telephone calls. However, the commenter 
did not address the specific changes to the regulation addressing in-
person visits by attorneys.
    Response: BOP agrees that meaningful access to counsel includes 
reasonable access to unmonitored telephone calls to facilitate 
attorney-client communications. Through separate procedures, BOP 
enables confidential communications between an inmate and their 
attorney through legal visits, unmonitored telephone calls, and 
unmonitored legal correspondence. Title 28 CFR 540.102 and 540.103 
address unmonitored telephone calls, while 28 CFR 540.18 and 540.19 
address unmonitored legal correspondence.
    However, the comment is out of scope as the interim final rule only 
addressed the procedures for in-person, confidential attorney visits as 
provided in Part 543, and did not address the different issue of rules 
applicable to telephone calls between inmates and their attorneys, 
which are in separate regulations at 28 CFR 540.102-540.103. To the 
extent the commenter's suggestion is intended to be construed as a 
petition for rulemaking pursuant to 5 U.S.C. 553(e), a comment to a 
rule pertaining to a different issue in a different set of regulations 
is not the proper mechanism to effectuate that provision. Individuals 
in BOP custody with individualized concerns or questions regarding the 
implementation of applicable regulations or policy are reminded of 
their rights to address such issues through the agency's Administrative 
Remedy Program, as outlined at 28 CFR part 542 and in BOP Program 
Statement 1330.18 (available at www.bop.gov/policy). Thus, BOP 
concludes that no changes are needed in the final rule in light of this 
comment.
    Comment 2: The commenter states that the rule should address 
attorney visits for individuals located at administrative facilities in 
holdover status; that the rule does not address circumstances where a 
pretrial or unsentenced individual is in holdover status at a BOP 
institution that houses convicted individuals; that BOP's explanation 
for the rule indicates that attorneys can visit a client in BOP custody 
like social visitors during normal visiting hours without advanced 
notice; that many attorneys are unwilling to be added to their client's 
regular social visiting list and that some attorneys are unwilling to 
provide personally identifying information on the social visit 
application forms; and that BOP should clarify if attorneys can show up 
at an institution during normal social visiting hours for a visit in 
the common area (i.e., not in a private setting) without providing 
sensitive personal information.
    Response: As background, BOP is responsible for the custody and 
care of sentenced federal inmates, felony offenders convicted and 
sentenced to a term of imprisonment under the DC criminal code a number 
of state and military offenders who are housed on a contractual basis, 
and pretrial detainees and pre-sentenced offenders housed in BOP 
facilities on behalf of the United States Marshals Service (USMS).
    The USMS is responsible for the care and custody of individuals 
charged with a federal offense. Responsible for housing approximately 
63,000 detainees, the USMS acquires detention bedspace through 
agreements with state and local governments in addition to available 
BOP pretrial cells. Approximately 75 percent of the detainees in the 
custody of the USMS are detained in state, local, and private 
facilities; the remainder are housed in BOP facilities. Ordinarily, 
pretrial inmates in BOP custody are housed in administrative 
institutions including Metropolitan Detention Centers (MDCs), Federal 
Detention Centers (FDCs), and Metropolitan Correctional Centers (MCCs). 
These institutions may also house convicted inmates awaiting sentencing 
or movement to designated institutions, or sentenced inmates who 
require further court appearances. A small number of other BOP 
institutions also house pretrial inmates in specific units within the 
main facility or in jail units located in satellite buildings separate 
from the main facility.
    As explained in the preamble to the interim final rule, the prior 
version of Sec.  543.13(c) provided that, to schedule any legal visit 
at any BOP institution, an attorney must make an advance appointment 
for a visit through the warden, and that the warden must make every 
effort to accommodate a legal visit when prior notification is not 
practicable. That prior rule was promulgated on June 27, 1979.
    To clarify, the interim final rule updated Sec.  543.13(c) to allow 
both scheduled and unscheduled attorney visits during designated 
attorney visitation hours at BOP institutions whose mission is to house 
pretrial detainees and unsentenced individuals. However, the rule 
retains the requirement that attorneys seeking to visit clients at BOP 
institutions whose mission is to house convicted individuals must make 
an advance appointment for a legal visit and that the warden must make 
every effort to accommodate a legal visit when prior notification is 
not practicable.
    Attorney visits for holdover inmates. The term ``holdover'' refers 
to individuals in BOP custody who are transferring from one BOP 
institution to another. These individuals are categorized as being in 
holdover status until they arrive at the institution to which they are 
officially designated. The interim final rule did nothing more than 
allow both scheduled and unscheduled attorney visits during designated 
attorney visitation hours at BOP institutions that have a pretrial 
mission housing pretrial and unsentenced individuals, and it retains 
the requirement for an advanced appointment for attorney visits at all 
other BOP institutions. Accordingly, attorney visits with any 
individual in holdover status housed at an institution that does not 
have a pretrial mission must ordinarily make an advance appointment for 
a legal visit. Individuals in holdover status and their attorneys may 
coordinate legal visits in the same manner as the offender population 
at the particular facility in which the individual is temporarily 
housed en route to their designated institution. To clarify, it is the 
type of institution and its specific mission that are determinative for 
purposes of scheduling attorney visits; an individual's temporary 
status as a ``holdover'' is not determinative. Further changes to the 
rule addressing attorney visits for pretrial and unsentenced 
individuals on holdover status are unnecessary.
    Adding attorneys to client's social visiting list. The commenter 
urges that this rule address the option for attorneys to be added to 
their client's social visiting list, but that subject is addressed by 
separate rules applicable

[[Page 101884]]

to regular visitors at 28 CFR part 540, subpart D. In coordination with 
their client, attorneys may seek to be added to their client's regular 
social visiting list and visit under the same conditions as other 
visitors in accordance with part 540, subpart D.
    Again, this comment is out of scope of what was addressed in the 
interim final rule. Such social visits are conducted in an open 
setting, not a confidential setting for attorneys to meet with their 
clients privately. By contrast, confidential attorney visits, which are 
the subject of this rule, are governed by part 543. To the extent the 
commenter's suggestion is intended to be construed as a petition for 
rulemaking pursuant to 5 U.S.C. 553(e), a comment to a rule pertaining 
to a different issue in a different set of regulations is not the 
proper mechanism to present such a petition. Thus, the BOP concludes 
that no changes are needed in the final rule in light of this comment.
    The commenter also urges that the rule clarify whether attorneys 
are required to submit the same personal information as other visitors 
to be added to the inmate's approved social visitor list. As noted, 
attorneys may seek to be added to their client's regular social 
visiting list and visit under the same conditions as other visitors 
pursuant to separate rules applicable to regular visitors at 28 CFR 
part 540, subpart D, and the more granular details regarding the 
processing of social visits are addressed in the BOP policy 
implementing those provisions. The BOP declines to make changes to Part 
543 in response to this comment.
    For the foregoing reasons, we conclude that no changes are needed 
in the regulatory language in Sec.  543.13(c) and (e) as adopted in the 
interim final rule, and that no other changes are needed in BOP's 
regulations in connection with this specific rulemaking action. 
Accordingly, this rule finalizes the interim final rule without change.

IV. Regulatory Certifications

    Executive Orders 12866, 13563 and 14094. This rule does not fall 
within a category of actions that the Office of Management and Budget 
(OMB) has determined constitutes a ``significant regulatory action'' 
under section 3(f) of Executive Order 12866 and, accordingly, it was 
not reviewed by OMB. The economic impact of this final rule is limited 
to inmates in the custody of the Bureau of Prisons and their attorneys.
    Executive Order 13132. This rule will not have substantial direct 
effect on the States, on the relationship between the National 
Government and the States, or on distribution of power and 
responsibilities among the various levels of government. Therefore, 
under Executive Order 13132, BOP determines that this rule does not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.
    Executive Order 12988--Civil Justice Reform (Plain Language). This 
final rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988 to specify provisions in clear 
language. Pursuant to section 3(b)(1)(I) of the Executive Order, 
nothing in this final rule or any previous rule (or in any 
administrative policy, directive, ruling, notice, guideline, guidance, 
or writing) directly relating to the Program that is the subject of 
this final rule is intended to create any legal or procedural rights 
enforceable against the United States.
    Regulatory Flexibility Act. The Director of the Bureau of Prisons, 
under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this 
rule and by approving it certifies that it will not have a significant 
economic impact upon a substantial number of small entities for the 
following reasons: This rule pertains to the correctional management of 
offenders and detainees committed to the custody of the Attorney 
General or the Director of the Bureau of Prisons, and its economic 
impact is limited to BOP's appropriated funds.
    Unfunded Mandates Reform Act of 1995. This rule will not result in 
the expenditure by State, local and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (as 
adjusted for inflation) in any one year, and it will not significantly 
or uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.
    Congressional Review Act. This rule is a not major rule as defined 
by the Congressional Review Act, 5 U.S.C. 804.

List of Subjects in 28 CFR Part 543

    Prisoners, Legal Activities.

PART 543--LEGAL MATTERS

0
Accordingly, under rulemaking authority vested in the Attorney General 
in 5 U.S.C 301; 28 U.S.C. 509, 510 and delegated to the Director of the 
Bureau of Prisons in 28 CFR 0.96, BOP adopts the interim final rule on 
this subject, published at 89 FR 8330 on Feb. 7, 2024, as a final rule, 
without change.

Colette S. Peters,
Director, Federal Bureau of Prisons.
[FR Doc. 2024-29681 Filed 12-16-24; 8:45 am]
BILLING CODE 4410-05-P
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